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Verizon launches US appeals court at Google-backed wireless plan

Throws Jello at Congress

Much to Google's chagrin, Verizon has asked a federal court to shoot down new rules that would allow consumers to attach any device and any application to a prime portion of the U.S. wireless spectrum.

Earlier this week, the mega-telco filed a "petition for review" with the U.S. Court of Appeals, insisting it re-jigger Federal Communications Commission (FCC) rules for the so-called 700-MHz band, a slice of wireless spectrum to be auctioned off in January. According to Verizon, the FCC's decision to open a portion of the band to any application and any device is "arbitrary, capricious, unsupported by substantial evidence, and otherwise contrary to law".

Verizon prefers the status quo, where it has complete control over any wireless bandwidth it licenses from the FCC.

"The nation's spectrum airwaves are not the birthright of any one company. They are a unique and valuable public resource that belong to all Americans," Chris Sacca, Google's head of special initiatives, wrote on the company's public policy blog. "It's regrettable that Verizon has decided to use the court system to try to prevent consumers from having any choice of innovative services. Once again, it is American consumers who lose from these tactics."

Get your tanks off my spectrum

With an open access requirement in place, Google may bid for spectrum, hoping to sell it off to various independent ISPs and foster a new level of competition in the broadband market. That's the broadband market - not just the wireless market. The Mountain Viewers and their cohorts are battling Verizon's control over the wired internet as well.

Verizon's petition is vague, but judging from comments previously submitted to the FCC, the company is arguing that an open access requirement would restrict the "free speech" of the band's winning bidder. And clearly, Verizon sees itself as the winning bidder.

Will this argument hold up? Probably not, according to Jonathan Kramer, a telecommunications attorney with the Kramer Telecom Law Firm in Los Angeles. The FCC has already addressed Verizon's argument in the 700-MHz order it laid down this summer, and Kramer says the court isn't likely to reverse the commission's decision.

The FCC has made it clear that it's simply following a Congressional mandate to advance new technologies. "Verizon is claiming that whomever is awarded a license will have its commericial free speech restricted," Kramer told The Reg. "But the FCC has already said 'You're right, but that's appropriate for us to do because we're following the direction of Congress."

Wrestling with Jello

So, in essence, Verizon is attacking Congress as well as the FCC. "Verizon is taking the position that Congress - through the FCC - can't do this," Kramer said. "Getting that argument to stick is tough. You throw that one at the wall, and it's going to come down like Jello."

What happens if the court does side with Verizon? Don Evans, a lawyer with the D.C.-area telecommunications firm Fletcher, Heald & Hildreth, says the FCC may or may not have the opportunity to appeal.

"There's a three judge panel that's assigned [to the petition]," Evans told us. "That panel will issue a decision and the next appellate level, if you wish, is review by the entire court, the nine judges that are on the D.C. circuit. Or you can go directly to the Supreme Court."

But all this has to happen mighty quickly. Congress has also mandated that the FCC hold its wireless auction before the end of January. Evans is sure that the court's initial ruling will decide the fate of the 700-MHz band. "As a practical matter, whatever the three judge panel rules will be how the auction proceeds."